The board decided instead to leave it up to the State Retirement Board to pursue the recovery of any pension earnings Khan may owe from 2003 to the present.

The decision was made with the guidance of hired legal counsel Michael Sacco, who said he did not believe MART or the MART Advisory Board would face any liability for deciding not to recoup wages Khan received while still receiving a pension through the State Retirement System for his years at the Montachusett Regional Planning Commission.

Sacco, who has extensive experience and practices exclusively in public pension law, said MART, under state law, has the ability to recoup the earnings from Khan but is not obligated to do so.

He said he has never seen an employer choose to recoup earnings, because the employer has paid for a service that was rendered.

"If someone works, you have to pay them, and they're entitled to keep that remuneration," Sacco said, noting state wage laws.

He said that when a retiree of a public entity is re-employed in the public sector, it is the responsibility of the retiree to keep track of his hours and earnings to make sure they do not exceed limitations set by state law, not the responsibility of his new employer.

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If the retiree does exceed the earnings and hours he is allowed, in theory, he is supposed to remit the excess funds to his employer, Sacco said.

"I would say to you as an employer, you don't have to be concerned about the fact that you hired Mr. Khan," he said. "You certainly had the right to do that. You compensated him for the work that he's done."

Sacco recommended the board choose not to recoup the funds, so as to not incur additional legal fees and enter a long process that would have the agency "under a microscope."

He said he believes that the State Retirement Board's claim that Khan owes for pension overpayments does have merit.

"By virtue of the fact that you're looking to join and could become a member unit of the State Retirement System, that qualifies you as a public entity," Sacco said.

Littleton representative and Town Administrator Keith Bergman brought up the option given to Khan by the State Retirement Board to pay back only his pension earnings in the time period in question, and the fact that he has since opted to no longer receive his pension while he is receiving a MART salary.

If there's no penalty or legal liability created for MART for not going after the funds, "it seems that maybe the appropriate thing to do is to let the state pension board go after what it feels are overpaid pension funds," Bergman said.

"I do not think we have a dog in this fight," he said. "I'm pleased to see that there's no liability associated with our decision not to pursue and that if it goes to the State Retirement Board, it will be decided there."

Bergman said he believes, however, that MART should enact a policy that ensures new hires are eligible to work hours they are hired to work and that both sides are aware of possible consequences.

"We need to have some kind of process in place so that those questions get asked during the hiring process, so that everyone is on notice to what the ramifications might be," he said.

Leominster Mayor Dean Mazzarella said he had posed that question in regard to Khan long ago when he moved from the MRPC to MART, and was advised that there were no issues.

Fitchburg Mayor Lisa Wong, who had wanted the board to seek legal counsel on the matter much sooner than it did, said after the meeting that the board "took a big step in exercising our fiduciary responsibility by seeking third party legal counsel for management matters beyond our expertise."

"The larger challenge still remains for righting the agency's financial ship and increasing transparency," she said.

Khan, who said he heeded his lawyer's advice and stayed quiet during the board's conversation on the matter, said after the meeting that he was happy with the board's decision.

"The way I see it at this time, is that the state made the decision that I can work for MART and earn a wage in here without any restriction," he said. "The pension is the only issue."

Khan said he still believes he should only owe from 2009 to 2013 rather than from 2003 to 2013, due to a 2009 change in state law.

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